In recent weeks, an interesting controversy has unfolded on the popular social media platform TikTok, involving athleisure brand Lululemon and a growing trend of Lululemon lookalike (and/or feel-alike) products, or #dupe for duplicate.
The trend, known as #LululemonDupes, has gained significant traction, with users showcasing and reviewing affordable alternatives to Lululemon’s highly sought-after Align leggings. This article aims to explore the intellectual property implications and passes off concerns arising from this phenomenon.
Lululemon, a prominent Canadian athletic apparel company, is widely recognized for its high-quality, premium-priced clothing, especially its Align leggings. These leggings have gained a cult-like following for their exceptional fit and comfort. However, their premium price tag has led to a surge in demand for affordable alternatives, which has given rise to a thriving market of Lululemon #dupes.
Peering into the intellectual property prism, we find ourselves looking at the potential shadows cast by copyright and trade mark issues.
Can Lululemon acquire copyrights in the feel of their fabric or the snugness of their fit? Unfortunately, not. Lululemon may hold copyright protection for certain design elements of their Align leggings, such as unique patterns or distinctive features. In these circumstances, copyright could vest as artistic works. However, copyright protection generally does not extend to functional aspects such as the leggings’ fit or fabric choice. Copyright protection in this case would likely be limited to non-functional design elements.
On the trademark turf, things get a tad stickier. Lululemon, armed with a portfolio of registered and soon-to-be-registered trademarks, including the ubiquitous logo and the ALIGN word mark, may raise an eyebrow at the unauthorised usage of these marks. A dupe causing consumer confusion might find itself facing an unsightly trademark infringement claim.
Then there’s the old common law friend, ‘Passing Off,’ acting as the guard dog against deceptive dupe makers creating a false Lululemon aura. If the dupes’ branding, packaging, or advertising tactics start to look a little too Lululemony, a passing-off concern may be raised.
Lululemon has yet to comment directly on the viral #LululemonDupes trend. Could they be contemplating legal action or perhaps practising a warrior pose to prepare for battle? If they do move to litigate, the dupes may be slapped with trademark infringement, copyright infringement, and passing off claims.
In the midst of this TikTok turmoil, which boasts a hefty 3.5 billion views for #dupe and over 150 million views for #lululemondupes, Lululemon is taking a surprisingly different approach. Instead of sharpening their legal claws, they’ve stepped into the ring, armed with their real Align pants.
The Lululemon store in Los Angeles’s Century City Mall recently served as the battleground for a cheeky “Dupe Swap.” Customers were encouraged to bring their knockoff Align pants and swap them for the real deal – a move that engages directly with the dupe culture while subtly winking at the tangible difference between the original Align pants and their cheaper impersonators.
This ingenious plan wasn’t a random brainwave but a result of Lululemon’s internal discussions. As part of their new campaign “Get Into It” for the Align product franchise, the brand wanted to engage with their TikTok audience on the front lines of the dupe battlefield. Customers were guided into a room designed to mimic the bedroom of brand ambassador Naomi Yeo, exchanging their dupes in an environment straight out of Lululemon’s campaign spot.
But don’t be mistaken, Lululemon isn’t taking this gamble blindly. They are betting on the loyalty of their community, their proven product quality, and the enduring allure of the real Align pants. As the ‘Dupe Swap’ initiative shows, the brand is confident that, in the long run, their authenticity will outshine the shimmer of the dupes, and dupe fans will be convinced to go for the original.
The #LululemonDupes trend on TikTok raises important intellectual property considerations for both Lululemon and #dupe manufacturers.
This controversy serves as a reminder of the ongoing challenges faced by brands and businesses in protecting their intellectual property rights in the digital age.
Brief by Stefaans Gerber | Head of IP